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Unveiling a Terrorism Case

Thursday, February 24, 2005; Page A20

FOR NEARLY two years, Ahmed Omar Abu Ali was imprisoned in Saudi Arabia without charge, allegedly at the behest of the United States. The U.S. government has not clarified what role it played in the detention of this U.S. citizen. Indeed, in seeking to dismiss a civil case brought by Mr. Abu Ali's parents, the government relied not only on secret evidence but on secret legal theory as well. The government's behavior remains a mystery, but this week the Justice Department revealed its case against Mr. Abu Ali, who has at last been transferred to U.S. custody. According to an indictment issued early this month but kept under seal until this week, Mr. Abu Ali conspired to provide support to Al Qaeda, seeking to become a "planner of terrorist operations like Muhammad Atta and Khalid Sheikh Muhammad." The indictment alleges, among other things, that he "discussed plans" with figures associated with the group to assassinate President Bush.

Mr. Abu Ali's indictment remedies one disturbing feature of his case: He is no longer being held without charge by a regime with little regard for human rights, but by his own government under an indictment that must be proven in a court of law. If U.S. officials played an improper role in initiating or sustaining his detention, a judicial forum now exists in which to air those allegations. His case can be adjudicated in the regular order, without the alarming secrecy the Bush administration has employed to date.

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How the indictment relates to the government's still-secret arguments in Mr. Abu Ali's civil case remains unclear. That case may now be moot, since it challenges a detention whose circumstances have so radically shifted. But any dismissal should be based on filings in the public record, not secret motions and evidence. However bad Mr. Abu Ali may be, secret law is unacceptable to the American legal tradition and must not gain a foothold.

Moreover, even as Mr. Abu Ali's indictment solves one problem, it potentially creates another. Mr. Abu Ali has alleged that he was tortured by the Saudis; federal prosecutors denied this claim yesterday, but, according to Post staff writers Jerry Markon and Steve Coll, Saudi security officials confirmed the use of some physical and psychological pressure tactics. An examination of the indictment does not reveal what evidence, if any, was gleaned directly or indirectly from coerced statements. But the timing of the indictment, nearly two years after the arrest, suggests that U.S. authorities may be relying on evidence provided by the Saudis. This is not necessarily inappropriate. But the courts need to ensure that no evidence obtained by torture -- with or without the connivance of the U.S. government -- is used to convict people in U.S. courts.